PubExchange terms of use

Introduction

The following Terms of Use (these "Terms of Use") govern your (hereafter you, your, user) use of the products and services available at the website located at the URL www.pubexchange.com (the "Site"), which was created, and is controlled and operated by On The Vine Media, LLC. ("Company"). As further described below, the Site features Company's proprietary traffic balancing technology in its various forms (collectively, the "Service") which may be used on the Site, or on your website or your affiliated websites via any software code that we may make available to you from time to time (such user is hereinafter, a "Publisher"), used in accordance with these Terms of Use. By accessing this Site or using any part of the Service, you agree to be bound by these Terms of Use. If you do not agree to these Terms of Use, then you may not access the Site or use the Service. Your right to use the Site and the Service is expressly conditioned upon your assent to these Terms of Use, to the exclusion of all other terms. The Service is available only to individuals who are at least 18 years old, whether acting on their own behalf or as an authorized employee or representative of a corporation or other business entity. If you do not so qualify, do not attempt to register for or use the Service.

Modifications of Terms of Use

Company reserves the right, at its sole discretion, to modify or replace these Terms of Use at any time. You should come back and review these Terms of Use from time to time, as you are solely responsible for reviewing and becoming familiar with any such modifications. Use of the Service by you, even if you have previously registered to use the Service on your website, and do not return to the Site on an ongoing basis, following this notification, constitutes your acceptance of the Terms of Use as modified.

Description of Service

The Service provides you with the ability to establish "Traffic Exchanges" (as defined below) with other users of the Service (each such user with which you have established Traffic Exchange is hereinafter, a "Partner"), in which both the Publisher and the Partner agree to display links that direct users to the news articles, graphics, photographs, images, illustrations, software, audio clips and video clips ("Content") as provided by the other (each such relationship between Publisher and Partner a "Traffic Exchange").

The Service provides you and your Partners with Content with the intention that the displaying of this Content will result in an approximately equal amount of user traffic (such individuals, "Visitors") directed between you and each of your Partners over the course of the traffic exchanges. The Service provides you with software code that, when implemented on a web site, displays a module, when appropriate, that manages the Service ("Module"). The Service also provides you with other products and services so that you may display links to a Partner's Content outside of the Module, including, but not limited to, Facebook, newsletters, and within Publisher's article content. Neither you nor your Partner are under any obligation to continue using the Service once a Traffic Exchange has begun and the Company cannot accept any liability if the Partner discontinues their use of the Service or ends the Traffic Exchange with you when they have sent less Visitors to you than you have sent to the Partner. For clarification, Publisher is not under any obligation to accept any proposed Partner relationship.

Some links may direct a Visitor to Content that your Partners have paid us to promote ("Promoted Content"). This Promoted Content generates credits for Publisher and can be used by Publisher to purchase traffic to Publisher's Content from other users of the Service ("Credits"). The Visitors that the Publisher directs to the Partner through this Promoted Content will not be reciprocated by the Partner. Publisher may control the settings for the Promoted Content functionality by using the user graphic interface provided to Publisher by PubExchange for managing the Content for the Service (the "Dashboard").

Use of Service

You may request to use the Service by providing certain information, including, without limitation, your name, your Publisher's URL, your email address, and the approximate number of pageviews that your website receives on a monthly basis. If accepted to use the Service, you will receive an email that notifies you of your acceptance and the Company will provide you with login credentials to use the Service. When you first log in to the Service, you will be asked to review and accept these Terms of Service, which you must do to use the Service.

Credits

Within three (3) days of PubExchange collecting any revenue attributable to the Promoted Content displayed by the Publisher, PubExchange will make Credits available to the Publisher in the Dashboard. Any dispute regarding the amount of Credits earned must be submitted to PubExchange in writing within thirty (30) days of Credits being made available in the Dashboard or it shall be deemed waived.

Credits shall be calculated and settled based on records maintained by PubExchange, and no other records will be deemed relevant for Credit calculations or determinations. PubExchange may withhold making Credits available to Publisher, if PubExchange, in its sole reasonable discretion, believes that the performance related to them are fraudulent or invalid in nature or if PubExchange was charged or back credited in their respect by the customer.

Content Submitted or Made Available for Inclusion on the Service

By submitting any Content, you hereby grant Company a limited, non-exclusive, fully paid-up, royalty free, worldwide right to use such Content and your registered and unregistered trademarks, service marks, trade dress, graphics or logos ("Publisher Marks") in any of the following: (i) on the Site, any Company blog or newsletter; (ii) on any business development, commercial sales materials, or press releases; (iii) as any part of the Service, such as on a Partner's web site; (iv) or in any other reasonable manner that a Publisher might expect Company to use its Publisher Marks.

Company Conduct

As a condition of use, you promise not to use the Service or the Data for any purpose that is unlawful or prohibited by these Terms of Use, or any other purpose not reasonably intended by Company. By way of example, and not as a limitation, you agree not to use the Service:

to abuse, harass, threaten, impersonate or intimidate other Company users or Content providers;

in any manner that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party;

for any illegal or unauthorized purpose. You agree to comply with all local laws regarding online conduct and acceptable content;

to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Company user;

to create or submit Spam to any other Company users or any URL;

to violate any laws in your jurisdiction (including but not limited to copyright laws);

via use of any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission;

to take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our Service infrastructure;

to interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;

to bypass any measures we may use to prevent or restrict access to the Site;

with the intention of artificially altering the Content, or any other Company service, including by way of creating separate user accounts for the purpose of artificially altering Company's services; artificially inflating clicks on Content or Promoted Content, or participating in any other organized effort that in any way artificially alters the results of the Service.

The following sites are strictly prohibited from using the Service and Company will actively terminate the Service from sites it finds to be in violation of these prohibitions: sites displaying adult, obscene, pornographic, libelous, infringing abusive or defamatory content, sites participating in, or encouraging participation in, illegal activities, sites that promote hate and discrimination, sites that facilitate the sale of firearms or illegal drugs. In addition, Company reserves the right in its sole editorial discretion to disable its Service on any site.

Company, in its sole discretion, may remove any Content from the Site for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), at any time.

License of the Service

A. GRANT OF LICENSE. Subject to your full compliance with all of the terms and conditions of these Terms of Use Company grants you a limited non-exclusive, revocable, nonsublicensable, nontransferable license to use (i) the Service; (ii) any application program interface or any other software code that we may make available to you from time to time provided by Company (collectively, the "Code"); (iii) any Company end-user documentation, solely when bundled with the Service; and (iv) any upgrades, updates and new versions of the Service, as further described below. Such license shall include the right to use any Company intellectual property rights associated with or related to use of the Code, other matters related to the Service, and the Company end user documentation, solely in connection with the use of the Service.

B. RIGHTS TO SUBLICENSE. You shall have the right to (i) contract consultants and contractors solely for the purpose of developing, manufacturing, testing, and supporting the use of the Service and the Code by you; and (ii) grant your end users sublicenses. Except as provided in this Section, you shall not have the right to sublicense any of your rights under these Terms of Use to any consultants, contractors, or other third parties.

C. LICENSE RESTRICTIONS. You shall not use the Code in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email ("Spam"), multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, weapons and accessories. You shall implement the Service in a timely manner in accordance with all reasonable instructions provided to you by Company from time to time.

D. OTHER RESTRICTIONS. Except as expressly and unambiguously authorized under these Terms of Use, you may not (i) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the (a) collaborative filtering data and related reports (collectively, "Data") to which Company may provide you to access in a variety of formats, or (b) Code, or (ii) otherwise use the Code or the Service on behalf of any third party. Except as described above, these Terms of Use do not include any right for you to use any trademark, service mark, trade name or any other mark of Company or any other party or licensor. No rights or licenses are granted except as expressly and unambiguously set forth herein. If you violate any of the foregoing restrictions, Company shall own all right, title and interest relating to any and all derivative works, inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, as they may relate to the use of the Service or the Code. You hereby agree to make all assignments necessary to accomplish the foregoing ownership.

E. NEW VERSIONS AND UPGRADES. Company may release updates, upgrades or new versions of the Service or the Code, or other software related to the Service, to be incorporated as instructed by the Company. You agree that any access to any Company software granted pursuant to these Terms of Use will not limit or restrict Company's right to modify or replace such software in future versions of the Service. The licenses granted to you herein shall be deemed to include such items.

F. TRADEMARK LICENSE. Company hereby grants to you a personal, limited, non-exclusive, non-transferable, fully-paid license to use the Company Marks (as defined below). You may use the Company Marks in conjunction with your use of the Code, the Data or the Service on any pages of your websites or affiliate websites that feature any aspect of the Service. You may publish blog posts on your blog or affiliate blogs that include the use of Company Marks at any time without additional authorization by Company, provided that you make reasonable efforts to send the blog post to Company prior to or concurrent with publishing thereof. Nothing in this Agreement grants you ownership or any rights in or to use the Company Marks, except in accordance with this license. Under no circumstances may you disparage or otherwise abuse the Company Marks, nor violate any terms of the User Conduct rules above. The rights granted to you in this license will terminate upon any termination or expiration of these Terms of Use and you will no longer make any use of any Company Marks.

G. NO OTHER LICENSES. The licenses granted hereunder are specifically set forth herein, and no licenses are granted by Company to you by implication or estoppel.

H. END-USER LICENSING. You agree that for each of your websites and/or software product(s) that use the rights granted herein, such website's terms and conditions will include terms to ensure that: (i) the Service, Data and the Code shall be at least as protected as your own proprietary software applications, and (ii) such proprietary software applications are protected by the terms of use on such website. You agree to include in such terms and conditions for use outside of the United States any country-specific provisions needed to comply with the foregoing, and agree to enforce the terms and conditions applicable to the Service, Data and the Code contained in such license.

Warranty Disclaimer

You acknowledge that Company has no control over, and no duty to take any action regarding: which users gain access to the Service; what effects the Service may have on you, your website or equipment; the accuracy or how you may interpret, rely on, or use the Service or the Data, including without limitation any loss of reputation or loss of traffic on your website or any website of any of your affiliates; or what actions you may take as a result of having been exposed to the Service. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, or reliance on, any Content, goods or services available on or through any third party website linked or referred to by any portion of the Service or Data. You release Company from all liability with respect to the Service, and any Content or Data provided or accessed via the Service or through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning the Data or any Content contained in or accessed via the Service or the Site and Company will not be responsible or liable for the contents, accuracy, copyright compliance, legality or decency of third party Content or services accessed via the Service or the Site or for your reliance on any of the foregoing. THE SERVICE, THE CODE AND THE DATA ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND, PROVIDED, HOWEVER, COMPANY WARRANTS THAT IT HAS ALL THE NECESSARY RIGHTS, TITLES AND INTERESTS IN THE SERVICE AND THE CODE, TO GRANT YOU THE RIGHTS AND LICENSES CONTAINED IN THESE TERMS OF USE. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT REQUIRED BY APPLICABLE LAW, COMPANY AND ITS AGENTS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE, THE CODE AND THE DATA, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. COMPANY DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE SERVICE, THE CODE OR THE DATA WILL BE UNINTERRUPTED OR ERROR FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Liability Limitation

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL COMPANY OR ITS AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICE, AND THE DATA, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE, OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $1,000. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF USE MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. COMPANY DISCLAIMS ALL LIABILITY OF ANY KIND OF COMPANY'S AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

YOU UNDERSTAND AND AGREE THAT YOUR SOLE RIGHT AND REMEDY AGAINST COMPANY IS TO DISCONTINUE USE OF THE SERVICE.

Indemnity

You agree to indemnify, defend and hold harmless Company, its parents, subsidiaries, affiliates, customers and vendors, and their respective officers, directors and employees from any liability, damage, cost or fees (including reasonable attorneys' fees) arising from: (i) any claim or demand made by any third party due to or arising out of your access to the Site; (ii) your use of the Service, the Code, the Data and violation of the Terms of Use by you; (iii) or the infringement by you, or any third party using your Company account, of any intellectual property or other right of any person or entity; provided, however, that you have not sought to remedy such infringement by using Company's copyright policy below.

Term and Termination

These Terms of Use shall continue until terminated as set forth in this Section. Company, in its sole discretion, may terminate or suspend user accounts at any time for any reason or for no reason at all, without prior notice or liability to you. Upon termination of your account, your right to use the Service will immediately cease. Upon termination of these Terms of Use for any reason, you shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Service, the Code and any the Data, and shall so certify, if requested, to Company that such actions have occurred. If you wish to terminate your Company account, you may simply discontinue using the Service. All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Payment

Payment processing services on PubExchange are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By agreeing to This Agreement or continuing to use the Service, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of PubExchange enabling payment processing services through Stripe, you agree to provide PubExchange accurate and complete information about you and your business, and you authorize PubExchange to share it and transaction information related to your use of the payment processing services provided by Stripe.

Government Use

If you are part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Service is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Service and the Data each are a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of such items by the Government shall be governed solely by the terms of these Terms of Use.

Export Controls

You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Service in violation of any such restrictions, laws or regulations. By downloading or using the Service and the Data, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country.

Miscellaneous

These Terms of Use constitute the entire agreement between you and Company pertaining to the subject matter hereof, and supersede any and all written or oral agreements with respect to such subject matter. No agency, partnership, joint venture, or employment is created as a result of these Terms of Use and you do not have any authority of any kind to bind Company in any respect whatsoever. These Terms of Use, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under New York law as such law applies to agreements between New York residents entered into and to be performed within New York by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Except to the extent otherwise determined by Company, any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Southern District of New York or in state court in New York County, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys' fees. These Terms of Use may be amended only by a writing executed by Company. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Company to act with respect to a breach of these Terms of Use by you or others does not constitute a waiver and shall not limit Company's rights with respect to such breach or any subsequent breaches. These Terms of Use are personal to you and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving you) without Company's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Company expressly reserves the right to assign these Terms of Use and to delegate any of its obligations hereunder.

Information We Collect

Company collects the following information about you on this Site and through the Service made available on your site or Partner sites:

Any information you submitted while signing up for the service (including name, email, etc).

The messages that you send to Partners via the Site.

Agreement requests and responses that are sent, received, accepted or declined via the Site.

Your clicks on Content and the documents with which they were associated

IP address and an associated estimate of your geographic location, referring URL's, browser and OS and other information normally passed in HTTP requests.

Use of Your Information

If you provide this information to us, then we use this information to operate, maintain, and provide the features and functionality of the Site and the Service.

Company will contact you using the e-mail address you have provided in the course of providing the Service you order or request on the Site, including among other things notices required by law.

Trademarks

Company, and other Company marks, graphics, logos, designs, page headers, button icons, scripts, and service names comprise registered and unregistered trademarks, service marks and trade dress of Company in the U.S. and/or other countries (the "Company Marks"). Other trademarks, service marks and trade names used on the Service are the property of their respective owners. Without Company's prior written authorization, you agree not to display or use in any manner the Company Marks; however, a Publisher may blog about its use of the Service at any time without such authorization, so long as Publisher sends the blog post to Company prior to or concurrent with publishing thereof.

Copyright Complaints

We respect the intellectual property rights of others and require that those who use the Service do the same. If you believe that your proprietary work has been copied in a way that constitutes copyright infringement, please forward the following information to Company's Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. Section 512(c)(2), named below:

A physical signature of the person authorized to act on behalf of the owner of the copyright; description of the copyrighted work that you claim has been infringed; A description of where the material that you claim is infringing is located on the Service; Your address, telephone number, and email address; A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.